Slashdot Mirror
Dutch Court Rules Hyperlinks Can Constitute Infringement
Ubi_NL writes "In yesterday's ruling of Playboy (via publisher Sanoma) vs Dutch blog Geenstijl, the court ruled that hyperlinking to copyrighted material was itself infringement of copyright. The court ordered the blog to remove all links to the infringing links (court ruling in Dutch). How this ruling fits into the supreme court ruling that hyperlinks cannot by themselves infringe copyright is still to be discussed, possibly in an appeal."
The court considered if the publishing of the hyperlinks by GeenStijl.nl constituted a publication (Dutch: ‘openbaarmaking’) as defined in article 12 of the Dutch Copyright Act. In principle, placing a hyperlink on a website is not a publication, unless three criteria are met: there must be an intervention, a new audience and profit.
- Intervention: The leaked pictures of Britt Dekker were stored on FileFactory.com, a cloud service to store files and share them with others. However, these files can’t be found through search engines, only users with the exact URL have access to the files. The URL to the file with the leaked pictures was publicly unknown, until GeenStijl.nl made it available to its large audience by publishing an article about it, the court says. Therefore, the actions of GeenStijl.nl are an intervention, according to the court. Without this intervention, the public wouldn’t have had access to the pictures before their official publication in Playboy.
- New audience: According to the court, there wasn’t an audience for the pictures before GeenStijl.nl published its article.
- Profit: By publishing the URL to the pictures, GeenStijl.nl had the unmistakable intention to attract more visitors, the court states. With success: in 2011, the article about Dekker was the best viewed topic on GeenStijl.nl, according to the statistics.
Taking the three criteria and the circumstances of this specific case into account, the court concludes that GeenStijl.nl has infringed on Sanomas copyrights by publishing the URL to the leaked nude pictures of Britt Dekker.
I'm not very clear on the jurisdiction of the Dutch court - but if hyperlinking equals infringement ruling only applies on sites which are hosted on Dutch servers, this will effectively make Dutch servers sort of the "untouchable"
Why would anyone want to host their sites on a Dutch server where court ruling such as puts on insane and unnecessarily limit?
Muchas Gracias, Señor Edward Snowden !
First all your websites have to put an annoying message at the top saying they are using cookies (duh, who doesn't).
Now this.
So Dutch courts protect Security by Obscurity?
No surprises here. Judges have as much of a clue of those things as the sec department in my company. Oh, wait...
"However, these files can’t be found through search engines, only users with the exact URL have access to the files"
trolololo:
https://www.google.nl/search?q=site%3Afilefactory.com&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a#q=site:filefactory.com+filetype:zip&hl=en&client=firefox-a&hs=QUX&rls=org.mozilla:en-US:official&prmd=imvns&filter=0&fp=1&biw=1440&bih=770&cad=b&sei=Gd9RUKvyD-mc0QWBmoCQDA&bav=on.2,or.r_gc.r_pw.r_qf.&sei=2fRSUNy8KKGm0QWOroH4Cw
https://www.google.nl/search?q=site%3Afilefactory.com&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a#hl=en&client=firefox-a&rls=org.mozilla:en-US%3Aofficial&sclient=psy-ab&q=site:filefactory.com+720p&oq=site:filefactory.com+720p&gs_l=serp.3...4732.8524.4.9049.5.5.0.0.0.0.365.1238.0j3j0j2.5.0...0.0...1c.1.B59GNHkYEVg&pbx=1&fp=1&biw=1067&bih=493&bav=on.2,or.r_gc.r_pw.r_qf.&cad=b&sei=2_RSUOvGGqet0QWXrICoCw
https://www.google.nl/search?q=site%3Afilefactory.com&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a#hl=en&client=firefox-a&rls=org.mozilla:en-US%3Aofficial&sclient=psy-ab&q=site:filefactory.com+HD&oq=site:filefactory.com+HD&gs_l=serp.3...27593.28006.8.28612.2.2.0.0.0.0.86.123.2.2.0...0.0...1c.1.cBIjdvh2Hig&pbx=1&fp=1&biw=1067&bih=493&bav=on.2,or.r_gc.r_pw.r_qf.&cad=b&sei=3fRSUL6iBM2Z0QX2koCoDw
Unfortunately it doesn't seem that new, there's also the judge Chris Hensen who happened to be running a commercial anti-piracy together with the council for the plaintif while deciding that links to TPB should be blocked.
Frankly I suspect it's rare with members of the various parts of the judicial system in the field of IP who do not have significant financial interest in enforcing IP. Whether it's revolving door interest or more blatant abuses the field of government granted monopolies has always been lucrative for those on the inside, which probably makes the field very attractive for those with slightly lower ideals than what could be expected in a judiciary.
Lawyers totally depend on security through obscurity. Laws are deliberately made made vague and obscure, thus providing job security for lawyers.
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
If I link to http://mysite.com/It was the day my grandmother exploded. I sat in the crematorium, listening to my Uncle Hamish quietly snoring in harmony to Bach's Mass in B Minor, and I reflected that it always seemed to be death that drew me back to Gallanach. that could be copyright infringement in a URL.
Hyperlinks are just references. Just like we have done so far in speeches, in books and articles.
References don't contain the referenced information, they just direct the reader/listener to another "information container".
Back to the web technology, a reference to a file is not the file itself (like the information author+title+publisher is not the book).
A reference to a "pirated" file (whatever the content is) is still a reference, not the "pirated" file.
You could say the reference helped the pirated file to be spread on the net. Yes, indeed it did.
But still that's not infringement. They should ash to remove the reference and that'd be all.
Sent as ripples into the electromagnetic field. No single photon has been harmed in the process.
And farting in bed can constitute an oven.
If you mod me down the terrorists will have won
I think this is an extremely interesting case. My first reaction was a typical knee-jerk don't touch my free hyperlinking speech! However, this goes further than that.
What has happened here, is that a URL was used that was effectively just as secure as one secured by a username/password. Only difference is that the username/password (or in this case another secret key, which is a mere technicality) were in the URL itself. The reasoning of the judge was that by publishing this secret, Geenstijl has effectively published the material that was protected by the secret. I think that's not that odd a decision. However, it is a very dangerous one.
What this boils down to, is whether the location of credentials should matter. One thing we all agree on, is that username and password passed in HTTP headers should be considered confidential. Using or publishing them without permission is most certainly illegal in most countries. Should a secret key or credentials that are part of or can technically be made part of a URL be treated in the same way? I think they should in obvious cases; for example using or publishing an url like http://slashdot.org/login?user=zmooc&pass=yo without my permission would probably be illegal. How obviously secret does an URL have to be for publishing it to be illegal? And who is to decide on that?
That's what this case is about or at least should be about.
0x or or snor perron?!
No it isn't. Wikipedia was known by the general public before you linked them from your comment. Furthermore, the content on wikipedia isn't infringing.
I've got copies of music available on my private server at home. That server can be reached from the internet. If you'd somehow found out the url of the copied songs, then you'd be publishing (i.e. making them known to the general public) them, which would be infringing. And my personal copies are legal since I'm allowed to make a private copy of music I own.
This is your sig. There are thousands more, but this one is yours.
It's not though. Wilfully linking to material that infringes copyright can, in certain circumstances, also be considered copyright infringement. Linking to CC or GPL content is legal because they give explicit permission to be shared.
The whole point of the reasoning of the judge was that the link wasn't in the google index (at least not at the time GeenStijl published it).
Can't agree more. These links could sit out there for 50 years, and if no one knew about them or no one used them, not a single case of infringement would happen. Simply pointing to 'stolen goods' (I use that term with tongue in cheek) doesn't make the finger pointer guilty of infringement.
It's kind of ridiculous as to the power the media companies are employing in the courts and in the political system.
I think your wild, conspiratorial accusations are completely out of line.
Slashdot and its biases theories aside, there are a lot of grown ups out in the world who have looked at IP law in general and, while perhaps accepting that there are occasional absurdities and oddities around the edges that do need to be worked out, have concluded that it is fundamentally good. They (we) have looked for this from multiple angles, including econonomic theory, economic REALITY (we now have excellent examples of rates of development vs strength of IP regulation - and guess what - IPR does seem to matter quite a bit), and ethics. You may disagree - you may have your own arguments against IPR - fine, fair enough - but for you to immediately proclaim " I suspect it's rare with members of the various parts of the judicial system in the field of IP who do not have significant financial interest in enforcing IP. Whether it's revolving door interest or more blatant abuses the field of government granted monopolies has always been lucrative for those on the inside, which probably makes the field very attractive for those with slightly lower ideals than what could be expected in a judiciary." is irresponsible and juvenile.
COP: Have you seen anyone here selling counterfeit Rolex?
...
Pedestrian: Yeah I saw a guy holding a suitcase of watches just five minutes ago.
COP: Can you point in his direction?
(Pedestrian points)
COP: You are under arrest for copyright infringement!
Judge: GUILTY!
You don't seem to understand how IPR works. As it works in most countries, "infringment" is a judgement call based on intent, amount, use, and so forth. For example, I can link to CNN.com from my homepage. No problem there. However, let's say CNN one day accidentally uses a picture that they dont have the rights to there. Am *I* guilty? no judge in the world would say yes. On the other hand, let's say I make a direct link on my homepage to "get your free copy of (latest hot movie here)" which direct links to a page or actual file on somebody else's site. What this ruling says is that the judge CAN consider this and CAN treat this differently, as damn well he should be able to.
If we follow your process through to the logical conclusion, then it would imply that the person linking to the content intended to download every linked object, which is patently ridiculous. The person creating the links doesn't necessarily intend to do anything with the links other than to profit from site visits via ads or whatnot.
Note that in both of your examples, you are the one linking to and accessing the IP in question.
This is a dangerous judgement, make no mistake. It opens up any search engine which frankly is an algorithm and not self aware. These just scrape sites and produce the links. There is no 'intent' there.
Hey, well as long as you have looked at it from multiple angles and reached a conclusion you must be correct. In fact, I'll bet your facts, logic, and statistical models are unimpeachable. Referring to IPR instead of copyright, trademark, and patent protection was the coupe-de-grace...
there are a lot of grown ups out in the world who have looked at IP law in general and, while perhaps accepting that there are occasional absurdities and oddities around the edges that do need to be worked out, have concluded that it is fundamentally good.
Isn't that the very problem the parent was describing? The judiciary should not be concluding that particular laws are fundamentally good, but applying them indifferently.
If nothing else, more law guarantees more work, so an impartial judiciary would not even celebrate the existence of some body of law.
I think your wild, conspiratorial accusations are completely out of line.
The problem is: we don't know. The legal world of IP (judges, lawyers, academia) is pretty small and specialized. The same judges handle the majority of cases, lawyers are also professors. All of them appear on commercial seminars. You can't speak of "wild, conspiratorial accusations" if key players don't try to avoid the suggestion of conflicts of interest.
All we have are the interpretations of law, treaties and precedents. General line: behavior on internet is being molded into the existing IP framework. Specific example from a different case: to the courts there's a difference between a 'link' (not infringing) and a 'deep link' (infringing). That's not to say the every ruling is suspect, in fact most are well researched and well thought even if the conclusion is less desirable, but rulings (and laws, treaties) aren't necessarily realistic, sensible or fair. Judges go far in explaining the law so that, another example, search engines for usenet can be found to be infringing themselves, not just facilitating.
there are a lot of grown ups out in the world who have looked at IP law in general and, while perhaps accepting that there are occasional absurdities and oddities around the edges that do need to be worked out, have concluded that it is fundamentally good.
Here's an oddity to think about: Dutch copyright is based on the exclusive right to publish and multiply a (copyrightable) work. How is that exclusivity possible when talking about computers which do nothing but copying, let alone internet? Is the working of computers and internet "fundamentally" wrong? Or, in this case, is it "fundamentally good" to blame a blog for infringing when it posts a link to leaked material?
"I'm not much interested in interoperability. I want substitutability. I want to be able to throw your software out."
Your naivete is endearing, or at least it would be if there wasn't so much needless BS for people to suffer.
You may disagree - but yes, the system is inherently corrupt, designed to have everyone clawing their way over each other to the top of the heap. Nothing 'conspiratorial', just normal, everyday nature at work. All other systems work precisely the same way. It is universal. It is also a scientifically proven fact that authority WILL be abused. Please, don't try to tell us it is not being so abused in this case, like so many others. That would be absurd. Your society feels that this level of abuse is acceptable. But that doesn't make it any less abusive. If this were 1820, would you be arguing for the property rights of the slave owner? Would you not condemn people if you witness them abusing an animal?
This little 'IP' business must be turned away completely. You seem to believe it's helpful to society, but it's only because it's convenient for you to believe propaganda at this point, for whatever reason.
You teach 'ethics' through guidance and example, not by dictate and prohibition. And you can foment nothing but disrespect when you don't apply the rules evenly, just like a coat of paint.
“He’s not deformed, he’s just drunk!”
Your post would be so much more insightfull, had it contained real "excellent examples of rates of development vs strength of IP regulation".
If I find the URL to the songs, I am allowed to make private copies of them even if I don't "own" them (so far that has remained legal under Dutch law), and you can be sued for distributing them to me. If I then make the URL public to others, according to this ruling, I may also be sued, but that does not get you off the hook.